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Rahul Dubey vs The State on 8 May, 2019

            IN THE COURT OF MS. SHUNALI GUPTA,
     ADDITIONAL SESSIONS JUDGE­5, SOUTH EAST DISTRICT,
                 SAKET COURTS, NEW DELHI


                     CRIMINAL APPEAL No. 204148/2016


Rahul Dubey
S/o Sh. Shiv Prasad Dubey
R/o S­112, Greater Kailash Part­II,
New Delhi­110048                                           .....Appellant


                                       Versus
The State                                               .....Respondent


Instituted on           : 08.07.2016
Reserved on            : 07.05.2019
Pronounced on          : 08.05.2019


                                 JUDGMENT

1. This appeal under Section 375 of Code of Criminal Procedure, 1973 (in short "Cr.P.C") is directed against the order dated 06.06.2016 passed by Sh. Gagandeep Jindal, learned Metropolitan Magistrate, South­East District, Saket Courts, New Delhi in Challan No. 860­03314, Circle SGV whereby appellant Rahul Dubey has been convicted on plea of guilt for the offence under Section 185 M.V. Act and Section 32/177 M.V. Act and sentenced to undergo simple imprisonment of 3 days and also pay a fine of Rs.2,100/­.

2. I have heard the arguments which have been advanced by the learned counsel for the appellant and the Ld. APP.

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3. Learned counsel for appellant contents that impugned judgment and order on sentence is vitiated for two reasons:

(i) That the plea of guilt was recorded under a mistaken belief as appellant was made to believe that he would be treated leniently if he pleads guilty to the offence (s) and would be let off on paying the fine­no substantive substance would be imposed.

(ii) Though the presence of the counsel for the accused/ appellant has been marked in the said order, however, in fact he was not represented by any counsel and therefore, the Ld. Trial Court had also informed the appellant who availed his right of free legal aid.

4. On the other hand, Ld. APP has submitted that the learned Trial Court has rightly sentenced the appellant for the said offences and the sentence is already on a lower side.

5. Now, in my opinion, since the appellant has pleaded guilty to the offences, the next question which comes up for consideration is as to how to meet out an adequate sentence keeping in view the nature of offence.

6. In this regard, I note that chapter 21A of Cr.P.C is with regard to plea bargaining. As per Section 265 E contained in the said chapter, where plea bargaining is effected, the power of the Court to award the sentence is restricted or curtailed in as much as only 1/4th of the substantive sentence provided for the offence can be awarded. Thus, in the process of plea CA No. 204148/2016 Rahul Dubey v. State Page No.2 of 4 bargaining, which is statutarily recognized­voluntarily plea of guilt is the basis whereof and which proceeds after recording the consent of all stake holders, the harshness of sentencing or severity is reduced.

Experience has also shown that in the sentence (s) awarded under plea bargaining settlement, the accused is rarely sentenced to imprisonment.

7. In context of the second contention, I have perused the TCR, the Vakalatnama of the counsel for the accused is not on record. In so far as the question of providing legal aid to the accused is concerned­Duty whereof is of the Court, in my view, once it has come on record that the accused is unrepresented by any counsel and he wishes to plead guilty, then in such a scenerio, the consequences of recording of plea of guilty should be clearly explained to him­firstly by his counsel and then the Court should step in. The duty to provide legal aid is not a cosmic formality but to ensure that the liberty of any individual which is too precious should not be sacrificed in a mechanical manner. Law is not supposed to penalize a person whose unrepresented by any counsel or otherwise cannot comprehend the consequences of his act.

8. In view of the above discussion, the following order is passed:­ The impugned order of conviction dated 06.06.2016 is upheld, however, the sentence awarded is modified to the extent that the accused is sentenced to undergo imprisonment till rising of the Court i.e. TRC and the fine already imposed. With these observations, the appeal stands disposed off.

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9. TCR alongwith copy of the order be sent to the learned trial court for 08.05.2019.

10. Appeal file be consigned to record room after due compliance.

Announced in the open court On 08.05.2019 (SHUNALI GUPTA) Additional Sessions Judge­05 South East District, Saket Courts, New Delhi Digitally signed by SHUNALI SHUNALI GUPTA GUPTA Date:

2019.05.08 15:46:53 +0530 CA No. 204148/2016 Rahul Dubey v. State Page No.4 of 4